STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

FERDINAND R DIETHELM, Applicant

W H TRANSPORTATION COMPANY, Employer

HOME INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 88070363

On or about August 23, 1992, the Marathon County Circuit Court issued an order staying the matter of Ferdinand Diethelm, and others v. T K Helgesen, Inc., and others, Marathon County Circuit Court case no. 91-CV-602. The court's order for stay granted the plaintiffs in that proceeding thirty days to petition the Department of Industry, Labor and Human Relations (DILHR) for a determination of "the employment status of T K Helgesen, Inc., and its relationship to the plaintiff, Ferdinand Diethelm." Thereafter, on September 14, 1992, the applicant and the insurer filed an "Application for Hearing" with the DILHR's Worker's Compensation Division and a hearing was held before Administrative Law Judge Janine M. Smiley on July 1, 1993. On November 2, 1993, Administrative Law Judge Smiley issued a decision on behalf of DILHR. That decision found that Kurt Helgesen, who was operating a crane at the time of the applicant's injury, was not a loaned or special employe of W. H. Transportation Company or Wausau Homes. T K Helgesen filed a petition for commission review of Administrative Law Judge Smiley's decision which was received by Worker's Compensation Division on November 19, 1993. Briefs were filed in connection with the petition. However, before accepting the petition and taking action on it, the commission must first decide whether it has jurisdiction in this case.

The commission first notes that, like other administrative agencies, its power to act is limited to authority granted under the terms of the statutes creating and governing it. Tatum v. LIRC, 132 Wis. 2d 411, 421 (Ct. App., 1986). The commission is created under sec. 15.225, Stats, and its general duties are set out in sec. 101.04 (1), Stats. That section provides that the commission "shall issue its decision in any case where petition for review is filed under Ch. 102 or 108 or s. 66.191, 1981 Stats., or s. 40. 65 (2), 101.22, 101.223, 111.39, 303.07 (7) or 303.21."

Of particular relevance here is the reference to petitions for review filed under Ch. 102, Stats. Section 102.18 (3), Stats., provides: "A party in interest may petition the commission for review of an examiner's decision awarding or denying compensation if the department or commission receives the petition within 21 days after the department mailed a copy of the examiner's findings and order to the party's last known address...."

Under sec. 102.01 (2)(am), Stats., the term "compensation," as used in Ch. 102, Stats., means worker's compensation.

This case poses two questions with respect to jurisdiction: (1) is T K Helgesen a party in interest and (2) does Administrative Law Judge Smiley's decision award or deny worker's compensation? Because the commission answers the second question in the negative, it determines that it has no jurisdiction in this case and does not reach the first question.

The circuit court's order to stay does not affect the amount of worker's compensation to which the applicant is entitled. Regardless of the employment status of Kurt Helgesen, the amount of worker's compensation that the applicant is entitled to under Ch. 102, Stats., remains the same. True, Administrative Law Judge Smiley's decision might have a significant impact on the applicant's ability to maintain his action as plaintiff in the civil case before the circuit court. Further, if the applicant prevails in that civil case, he may receive third party damages subject to division by the court under sec. 102.29, Stats. Any such award, however, is separate and distinct from worker's compensation.

Administrative Law Judge Smiley's decision, therefore, does not grant or deny compensation. Nor does it even actually involve the payment of worker's compensation, strictly speaking, but rather answers a legal and factual question arising from a tort action in circuit court. The commission recognizes that it often reviews determinations that do not themselves grant or deny compensation, but are preliminary or ancillary to the payment of compensation. However, this is not such a case, and if the words "granting or denying compensation" in sec. 102.18 (3), Stats., have any meaning, they preclude commission review of Administrative Law Judge Smiley's decision.

Although it lacks statutory jurisdiction, the commission must also consider whether the circuit court's order for stay contemplated commission review of Administrative Law Judge Smiley's decision. The commission does not believe such review was intended. Indeed, further review under Ch. 102, Stats., would ultimately bifurcate the civil action in circuit court from the issue decided by Administrative Law Judge Smiley. See sec. 102.23, Stats. In sum, the circuit court's order, requiring a determination by DILHR, has been fully complied with. The commission must therefore dismiss the petition for commission review.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The petition for commission review is dismissed.

Dated and mailed at Madison, WI September 23, 1994
ND  § 9.2

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

cc: ATTORNEY KEITH F ELLISON
PATTERSON RICHARDS HESSERT WENDORFF ELLISON

ATTORNEY JEFFREY J STRANDE
TERWILLIGER WAKEEN PIEHLER CONWAY SC

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